Defence Bill: deliberations

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Defence and Military Veterans

07 May 2002
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

7 May 2002

Documents handed out:
Defence Bill [B60-2001]
Proposed amendments to the Defence Bill (see Appendix)

Ms Modise (ANC)

Department delegation: Mr J Rathebe, Director: Legal Services; Mr Motumi, Chief director: Policy and Planning; Maj Gen v/d Poel, Director: Human Resources, Ms Kabushi, special advisor to the Minister.

The Committee completed informal deliberations on the Defence Bill. Chapter 6 and Clause 99(16) have been flagged until the Chairperson can get clarity on the issue of defence intelligence, police powers and covert issues. Some minor amendments were made to the Bill during this deliberation on Chapters 17 and 18.

Chapter 17 Offences and penalties
Clause 99 Offences and penalties
The Committee agreed to the provisions of Clause 99 (1), (2), (3) and (4).

Clause 99 (5):
"Any person who, without authority, possesses, or wears prescribed uniforms,
distinctive marks or crests, or performs any prohibited act while wearing such uniform,
or with such uniform, distinctive marks or crests, is guilty of an offence and liable on
conviction to a fine or imprisonment for a period not exceeding five years."

Ms Modise explained that the Minister of Defence had stated on national TV that he wanted to outlaw all non-official use of camouflage. This section was the result thereof.

Ms Kabushi, special advisor to the Minister, commented that although the registering of camouflage uniform was done through the law, it would be very difficult to outlaw similar-looking camouflage material.

Ms Modise was also concerned that ordinary people did not have specific knowledge of all the uniforms and it was difficult to differentiate between the uniforms. She said that the Committee would have to discuss what could be done about the problems associated with the provision.

A committee member suggested that a way to deal with the issue would be by prohibiting people from wearing certain uniforms, and any other clothes that could be confused with the uniforms. He added that this could be prescribed by the Minister in the regulations.

Ms Modise added that it would also be necessary to take fashion into account. Nevertheless, she said that the Bill had sufficiently provided for the matter. She asked the Committee whether they agreed with Clause 99 (5).

The Committee agreed to the provision and also to Clause 99 (6).

Clause 99(7):
Ms Modise wanted to know how the Department proposed to police gestures:
"(7) Any person who, without authority, discloses or publishes any information, or is
responsible for such disclosure or publication, whether by print, the electronic media,
verbally or by gesture, where such information has been classified in terms of this Act,
is guilty of an offence and liable on conviction to a fine or imprisonment for a period not
exceeding five years."

The response was that gestures were often recorded by pointing, winking or flicking lights.

Ms Modise felt that this was potentially difficult to prosecute. This is because picture proof would be more difficult to rely on in comparison to video proof. Nevertheless, the Committee agreed to the provision as well as subclauses (8) and (9).

Clause 99(8):
Regarding Clause 99(8), Adv Smit asked if 'database' referred to personal databases. He also asked for clarification of what was protected by the provision. He mentioned the matter of information wars, and asked whether the provision was attempting to deal with this.

Ms Modise wanted to know whether he was motivating for a stiffer penalty.

Adv Smit (NNP) explained that he wanted to know what the provision was intended towards.

Mr Motumi, Chief Director: Policy & Planning, responded that the matter was covered by Clause 99 (10) which had the effect of imposing a stiffer penalty by doing what was provided for in Clause 99 (8).

Mr Woods explained that in a state of cyber war, the provisions would not be relevant. He wanted to know whether the actions would therefore be subject to the President's power.

Mr Waterson asked whether anyone had ever hacked into the Department system.

Mr Motumi said that there had been such occurrences, and he referred the committee to a recent case in which an officer who had been charged was currently before the courts.

Ms Kabushi explained that the Department did have good protection mechanisms. As a result, even if one was able to enter the system, one would not be able to gain further access. She added that the greatest threat would come from the people inside the system who already had access to part of the system.

Ms Modise suggested that the provision was deliberately wide.

Mr Motumi said that it would be necessary to prove to the court that the conduct complained of, prevented the defence force from carrying out its duties. The decision would then be left to the court.

Mr Madasa (ACDP) called for specificity concerning the types of duties that were envisaged. He suggested that by leaving the definition too wide, the possibility was left open for penalties to be too high.

Adv Smit (NNP) explained that his concern was not with whether such a penalty had to exist as the provision had existed in the past. However, his concern was with persons that would take information from databases, as this could lead to great harm. He chose not to propose that the provision was too broad. However, the provision seemed to be all-encompassing.

Mr Oosthuizen (ANC) asked for the department's definition of the words 'obstructs' and 'interferes'. He suggested that it was therein that the problem originated because a very fine line existed between the two words.

Mr Rathebe explained that the defence force had specific tasks imposed on it by the Constitution. As a result, it was not possible to specify all the incidences that could amount to the obstruction of the aims of the defence force when performing its primary functions. He added that the defence force also had other secondary functions to fulfill. Using this distinction, he emphasized that a court of law would concern itself only with the question: did the actions obstruct the functions of the defence force. Where the question could be answered affirmatively, a penalty would then result.

Ms Modise mentioned that during previous discussions, the committee had considered the reaction of property owners along the border. She added that approximately two years ago, the world had seen the picture of a small Palestinian boy throwing a stone at an Israeli tank. The boy was hunted down and killed as the Israeli soldiers claimed that the boy had obstructed them in the performance of their duties. She firmly stated that it was images like this that the committee was afraid of. The problem was where a line could be drawn, and she concluded that although the provision was necessary, some limitations had to be imposed on it.

Mr Rathebe repeated the fact that the Defence Force was subject to the Constitution. He referred to the two examples that had been raised and agreed with the claim that the property case could prima facie amount to a contravention of fundamental rights. As a result, the provision was limited by the reasonableness requirement. This meant that where conduct was unreasonable, one could approach the court, and following which a charge could be laid with the police. Nevertheless, the point to note was that court intervention existed, and that in this regard the court would determine how far the matter could go. He referred to the question of the Palestinian boy and stated that there was nothing in the proposed Act that justified such behaviour. He emphasized that they were not providing for such instances.

Mr Hoorn, State Law Adviser, added to the last speaker by referring the Committee to Clause 2 (c) of the Bill. This made it clear that the force was bound by the Constitution and by international law.

Mr Madasa (ACDP) emphasized that the courts relied on the committee to be clear in its enactments. He added that it was not for the courts to give content to legislative enactments, and that the committee would have to envisage exactly what it meant. The fact that the committee was not 100% sure as to the scope of the provision posed a problem. Until 100% clarity could be achieved, the committee would not be able to leave the provision as it stood. He called on the Department to tell the committee what they meant.

Mr Oosthuizen (ANC) added another difficulty with the use of the words 'obstructs' and 'interferes'. He explained that in that form, the words referred only to the individual. This left the situation to be faced by corporations open. He stated that the committee had to make it clear who would be responsible in such cases, i.e. the individual or the authority. He reiterated earlier statements that the committee understood what the department was attempting to achieve. However, greater clarity in terms of the definitions would be needed.

Mr Rathebe repeated that there were a number of activities that could fall into the definition, so long as they amounted to defeating the ends of justice. It was not possible to list them all. He added that even if they did list the instances, other possible activities could be left out. He stated that the matter was a question of fact and that the court would analyse the conduct concerned. One would have only the option of lodging a complaint. The NDPP would then decide whether or not to prosecute. As a result, he strongly felt that the provision was not a cause for complaint.

Mr Ndlovu (IFP) noted that he alone agreed with Mr Rathebe. He explained that the committee could not define the words on this level because by doing so, the omission of other activities would then be used against those causes. Although he agreed that the debate by the committee was very mature, he felt that the Department was correct on this point.

Ms Modise stated that she did agree with the department. The point she was trying to make was that the committee did not want to see abuse of the provision.

Mr Hoorn added that the definitions were not that wide because, in terms of the proposed Act, the defence force had certain duties. The result is that one could only be penalized in terms of this provision in instances where the defence force had acted lawfully.

Adv Smit (NNP) explained that criminal courts would interpret legislative intent through the sentencing mechanisms adopted. As a result, the courts would then be guided by the legislative intent, which currently stood at 25 years. However, he was concerned that the Bill did not seem to encompass the new ways of thinking since the September 11 attacks. He suggested that they either increase the term of imprisonment provided for in Clause 99(8), or decrease the sentence imposed in Clause 99 (10).

Ms Modise proposed that they increase the sentence imposed in Clause 99(8), thereby leaving 99(10) unchanged. She added that if indeed there was access to databases, the committee would want stricter penalties.

Mr Ndlovu (IFP) suggested that if the broad definition was intended to include both serious and minor obstructions, then the solution could lie in dealing with serious obstructions separately. He felt that making specific provision to the serious obstructions would better guide the courts. He noted that the issue was not so much about the division. Rather the problem lay where the distinction could be misleading, especially in light of the weight of cases.

Ms Modise confirmed that there were some inexperienced and irresponsible judges that imposed disturbing sentences on certain crimes.

Mr Rathebe really could not understand the point of contention. This made him unable to offer any solutions, and directed the problem to his colleague.

Mr Hoorn felt that the sentence of 10 years in 99(8) had the potential of sending the wrong message. He suggested that a balance with 99(10) could be achieved by raising the sentence imposed in 99(8).

Mr Ndlovu (IFP) proposed adding the phrase "not exceeding 25 years" to 99(8), whilst leaving 99(10) unchanged.

The Committee was happy with the proposal and Mr Rathebe accepted the amendment.

Ms Modise questioned whether the duties in the Bill reflected the functions in terms of the Constitution.

Mr Rathebe proposed adding the phrase subject to "the Constitution and to this Act".

Clause 99(11):
In answer to whether the provision was necessary, Mr Rathebe explained that the department was seeking to criminalize the refusal to act in terms of a contract. He felt that the provision was necessary.

Mr Smit (NNP) mentioned an article he had read dealing with the constitutionality of sending a person to prison on the basis of a civil debt. He questioned whether the contract gave rise to civil duties, and he wanted to know whether the Constitution allowed the criminalization of a civil arrangement. He asked whether the department had looked to foreign law, such as the USA, in an attempt to answer that question. Nevertheless, he noted that he was not opposed to the principle.

Mr Ndlovu (IFP) was not sure whether he understood the last speaker. He wanted to know how the cancellation of a contract could result in prosecution.

Mr Madasa (ACDP) believed that there was definitely a problem with the clause because it ran against the spirit of the Constitution. He suggested that the provision was a short circuit through a problem that could otherwise be solved departmentally. He added that criminalization under such circumstances would really be a moot point.

Mr Ntuli (ANC) pointed out that all members of the defence force voluntarily agreed to join the force. Certain force levels had to be guaranteed. If one agreed and then suddenly change one's mind, the obligation had to be upheld. He noted that other remedies were available, and referred to the Exemption Board as one.

Ms Modise asked whether it was not also that by having voluntarily agreed to enter the force, one also agreed to the limitation of one's rights. Thus by having agreed to have certain rights taken away, breach mechanisms in ordinary civilian contracts could therefore not apply.

Mr Smit (NNP) made a distinction between:
a) An agreement to limit rights.
b) The legal system which would arise in cases where one did not act in accordance with the contract one voluntarily entered, and consequently limited one's rights.
He stated that in civil law one could not automatically criminalize breach of contract. Thus the committee was dealing with a two-pronged question.

Mr Rathebe explained that the refusal to act in terms of a contract would lead to civil remedies. However, when dealing with persons serving in the defence force, this would lead to charges of disobeying a legal order. This made it necessary to distinguish the defence force situation from that dealing with civil remedies. He added that even if constitutional questions could be raised, he did not see a violation of any fundamental rights in this situation.

Mr Madasa (ACDP) stated that the corollary was true. He wanted to know why one could not voluntarily exit a contract that one had voluntarily entered. He felt that the issue could not be whether the conduct should be criminalized. The question rather was the constitutional effect, and as a result thereof, the committee had to pause to consider the constitutionality of it.

Mr Rathebe explained that one way of exit could be achieved through a formal resignation. However, the problem identified by the provision was the case where a person would just decide not to serve. He noted that the Constitution itself called for a disciplined defence force.

Mr Smit (NNP) stated that they were speaking of a fixed term contract, and that one had to distinguish this from legal orders.

Ms Modise told him that he was incorrect. She referred to the exit mechanisms dealt with earlier, and stated that the provision here dealt only with unacceptable behaviour. She believed that once voluntarily entering the contract, members of the defence force could no longer speak of a civilian contract. She gave the example of domestic workers and explained that they could not decide when not to work. She reminded the committee of their debates surrounding the deployments to the DRC and stated that they were currently facing the same issues. The breach provision was not like the other exit mechanisms provided for in earlier chapters.

Mr Blaas (NNP) highlighted the fact that the committee was now talking about military service contracts although it had begun the discussion by dealing with persons that did not obey specific orders. He wanted to know whether there was a difference between the two.

Mr Oosthuizen (ANC) explained that it was implicit in military contracts that orders were taken from superiors. He was not sure what the debate surrounded because as it stood, he felt that the clause sufficiently dealt with the matter.

Mr Smit (NNP) stated that there were many instances in which a legal order could be disobeyed. He wanted to know whether the Bill would deal with the situation where three years down the line, an officer wished to step down. This was his concern because it would be dealt with as a breach of contract, with resulting imprisonment.

All members sitting on the Committee loudly stated that his interpretation was misconceived and that that was not the case.

Ms Modise was satisfied that the committee finally agreed that the provision was necessary.

Clause 99(12):
Ms Modise asked whether this provision would deal with the demonstrations in Pretoria that were recently seen on television.

Mr Rathebe said that the answer would really depend on whether Regulation 8 had been contravened. This was because persons were not prohibited from demonstrating. The only problem lay in the method of demonstrating.

Mr Madasa (ACDP) asked whether this meant that trade unions could affiliate to others.

The Committee emphatically responded that this was not the issue.

Mr Ndlovu (IFP) said that the clause seemed to imply that all members had to embark on strikes through the use of the words "unless otherwise". He wanted clarification as to what the provision meant.

Mr Rathebe replied that there were certain activities that were not prohibited by the regulation, and that it was in this regard that strikes could occur.

Mr Ndlovu (IFP) stated that Mr Rathebe was not answering his question. He directed Mr Rathebe to read the sentence concerned and said that the committee seemed to be opening the door that they had earlier shut.

Mr Rathebe repeated that such demonstrations were allowed, and it was the result thereof that the provision stated "unless otherwise authorised".

Mr Ndlovu (IFP) requested that the department remove the words and rather provide "participate in strikes and protests".

Mr Rathebe acknowledged that Mr Ndlovu was indeed correct in highlighting the implications. He suggested that they would find a way of clarifying the position.

Mr Mcintosh (DP) mentioned the fact that the Minister of Defence had said that there were no trade unions in South Africa. However, he was concerned that this Bill would recognise them as such.

Ms Modise added that the ANC was very strong on this issue, and that they had called for the use of "military association". Nevertheless, she acknowledged that there were at least two recognised military trade unions, thereby confirming that they did exist.

Mr Rathebe responded that by looking at the regulation, one would realise that the importance lay in the content of the right. He felt that the question of the label to be attached to the right was not important in comparison to the content of the right.

Mr Ndlovu (IFP) did not want to labour the point but he found the inclusion of the provision very strange. He emphasised that the two were totally different in relation to one another, and he was not sure as to which line the committee would endorse. It seemed as if the committee was turning its backs on the point it had earlier upheld.

Mr Rathebe explained that the two bodies contained similar rights, notwithstanding the label attached to them. It was for this reason that he called for the committee to look at the rights that had been guaranteed.

Mr Madasa (ACDP) stated that Mr Rathebe was too much of a lawyer. He explained that their duty was to deal also with political issues. Thus although he realised that the arguments made by Mr Rathebe were sound, there were connotations attached to the names, and that this is where the committee members were coming from.

Mr Smit (NNP) had two points to make. Firstly, the Constitutional Court, per O'Regan J, had referred to them as military trade unions. This meant that they would be bound in that regard. Secondly, he acknowledged that Mr Rathebe was correct in asking what was in a name because the issue would turn on the rights that were guaranteed. However, this would unfortunately have side effects from a political viewpoint.

Mr Rathebe stated that he felt that the issue had been exhausted.

Ms Modise explained to Mr Ndlovu that they were stuck with the name, and that there was nothing that could be done in that regard.

After a tea break, the Chair proceeded with the meeting, noting that the point raised by Mr Ndlovu would be considered.

Clause 99 (14)
The committee agreed to the provision.

Clause 99 (15)
Mr Mcintosh (DP) asked if the provision was necessary because the matter seemed to be catered for elsewhere.

Mr Hoorn responded that the instances were indeed catered for in 99 (20).

Mr Modise (ANC) stated that the matter was covered and proceeded to ask whether they could move on to Clause 99 (16).

Clause 99 (16)
(16) Any person who, without authority, discloses the identity of a covert source of

the Department, is guilty of an offence and liable on conviction to a fine or imprisonment

for a period not exceeding 25 years."

The Chair noted that Chapter 6 would have a bearing on this provision, and called for the committee to bear this point in mind. She added that there had been quite an argument two years previously as to whether the defence force had the power to act covertly.

Mr Rathebe replied that there was currently nothing in the law preventing the overt collection of information. However, covert operations implied underground work, and this would be unavoidable.

The Committee agreed to Ms Modise's proposal that they hold off the debate until they returned to dealing with Chapter 6.

Clause 99 (18)
Mr Mcintosh (DP) wanted clarification regarding the necessity of the provision. In addition, he questioned whether part-time services would be included in the provision.

Ms Kabushi responded that the reserves were included. She explained that change of address notification was obviously very important given the lack of daily contact. She noted that other particulars could well relate, thereby making it impossible to be available.

In answer to what was a "prescribed officer", Mr Hoorn replied that it referred to one prescribed by regulation. Ms Kabushi gave the example of an officer commanding his unit.

Ms Modise commented that on her first reading, she had found the address requirement to be very strange. Nevertheless, she understood the reading given by the department.

Mr Mcintosh (DP) suggested that it would be better to clarify the provision with the inclusion of "particulars that affect his or her ability to serve". He enquired how many of the addresses of part time forces were actually known.

Ms Kabushi explained that as with many other penalties, they were required to be of a prohibitive nature. She proposed changing the provision to provide "change of address and such other particulars".

Ms Modise welcomed the proposal. However, she was concerned that Ms Kabushi had not commented on Mr Mcintosh's suggestion which was reiterated.

Mr Hoorn stated that the particulars would be prescribed by the regulation, and that the detail would be set out there.

The Committee agreed with 99(18) as amended.

Clause 99 (19)
Mr Motumi introduced an amendment to this clause as provided for in the amendment note.

Mr Madasa (ACDP) asked why the provision could not rather state "department".

Mr Ndlovu (IFP) responded that the use of the word "state" was correct because the department was a subsidiary of the state.

The committee agreed to the new provision.

New Clause 99 (20) (a)
This was the old Clause 99 (19) (a). The committee found no problems with the provision.

With Clause 99 (20) (b), Mr Madasa (ACDP) reminded the committee that the last time they had dealt with subpoenaing, that they had decided on a sentence of 5 years. He proposed reducing the sentence to 3 months in order to bring it in line with the aforementioned provision. As it stood, anyone could be arrested even for the most minor offences and he did not like this.

Ms Modise explained that they had intended that the provision mean what he said.

Mr Madasa indicated that the matter was closed, so long as the Chair was happy with the provision.

Mr Smit (NNP) directed the committee to read the new Clause 99 (20), the old Clause 99 (19), and stated that he was not happy with the comma in the second line. He wanted to know whether it meant "or" or "in addition to/and".

Mr Motumi responded that both instances were covered by the provision. Mr Hoorn finalised the matter by saying that they would redraft the section to ensure that it could not be misread.

Clause 99 (20)
Mr Rathebe noted that the provision should have been drafted in sub-paragraphs. Nevertheless, it was a style of legal drafting.

Ms Modise stated that whichever way the department chose to convey themselves, they would have to ensure that there would be no doubt in the mind of the readers that the provision was intended to refer to an "or" situation.

Mr Ndlovu (IFP) wanted to know the position that would be faced by witnesses that could not appear before the Board. In particular, who would issue the warrant of arrest.

Mr Hoorne stated that the Board would have to lay a charge with the police. As a result, the prosecuting authority would take over the matter, and the normal situation regarding the institution of any legal proceedings would then ensue.

In answer to whether a person could be charged even if failure to appear was due to a heart attack, Mr Rathebe explained that the court would seek a reasonable excuse for failure to appear. He added that the Board would also be looking for such explanations.

Ms Modise referred to Clause 99 (20) (b), and asked for the view of the Committee.

Mr Mcintosh (DP) asked if the section would be brought into line with Clause 67 (b). This is because whilst one section provided for a 3 month sentence, the other provision referred to 5 years.

The Committee pointed out that the matter had already been covered.

Mr Mcintosh (DP) asked for clarification as to why the difference existed in the first place. He noted that legislation was never made in a vacuum.

Ms Modise commented that when the department had introduced this provision, they had stipulated that they would be bringing it in line with other provisions.

Mr Rathebe noted that the 5 year term had been amended to 3 months. This meant that Clause 67 (b) was now in line with Clause 99 (20)(b).

The committee agreed to the provision.

Clause 99 (21)
In answer to the Chair pointing out that there were two 99(21)s, Mr Rathebe suggested that it was a typing error, and that it could easily be fixed.

Ms Modise still wanted to know what both provisions were attempting to say.

Mr Diale (ANC) wanted clarity as to the first (21) because it seemed that the provision meant that where sections had not been declared to be offences in terms of the Act, other offences could then be created.

Mr Rathebe responded that the provision gave too broad a mandate by having the effect of criminalising too much conduct. He suggested that they delete the provision altogether.

Mr Smit (NNP) also argued for the deletion of the provision because it had too wide an ambit.

Mr Oosthuizen (ANC) wanted to know the intention behind the inclusion of the provision.

Mr Rathebe responded that he could only speculate. Sometimes there would be special obligations that would have to be met. Thus, it was probably intended that the provision be used as all encompassing, thereby preventing such failures to meet the obligations.

Mr Mngomezulu (ANC) referred to the phrase "wilfully gives false evidence". The committee interrupted him and explained that the phrase had already been dealt with.

Ms Modise asked the committee whether everyone was in agreement. She noted that all the members had the right to take the committee back to issues that had already been dealt with.

Mr Mngomezulu (ANC) said that he was confused by the reference to two documents. Nevertheless, he proposed the phrase change to "deliberately misleads the Board" as this had greater weight.

Mr Rathebe stated that the word "wilfully" also meant "intentionally".

Mr Madasa (ACDP) added that he was also going to raise the same issue. He stated that clarification would be necessary in order to avoid ambiguity.

Mr Smit (NNP) felt that there was a very fine line between the two words. However, 'deliberately' would imply that one was lying. Thus he suggested going for a wider concept, and proposed that "misleading" would be the proper and wider concept for the subject.

Mr Hoorn stated that he liked the phrase "deliberately misleading the Board". He noted that different computer packages had been used to produce the documents, and that any inconsistencies could have been the result thereof.

Ms Modise proposed that they effect the change.

New Clause 99 (22) (a) and (b) (old Clause 99 (21) (a) and (b))
Mr Diale (ANC) noted that any agreements with regards to subsection (a) would immediately affect the reading of subsection (b).

Ms Modise said that the result was that subsection (b) would fall away.

Mr Oosthuizen (ANC) thought that the new Clause 99 (22) would fall away in its entirety because it had the effect of criminalising the entire Act.

Mr Rathebe responded that that was not the case.

Ms Modise proposed that they reformulate subsection (b) to stand alone.

Mr Rathebe agreed with her suggestion. He added that the reference to subsection (a) would be deleted.

Mr Mcintosh (DP) asked whether subsection (b) would now stand alone.

Ms Modise responded that it would stand amended.

Mr Oosthuizen (ANC) stated that although he heard the argument, the provision still had the effect of criminalising acts that had not yet been defined, even in the amended form of the provision. He felt that such a clause at the end of the Bill was not necessary as it would have the effect of opening the floodgates.

Mr Rathebe explained that the section did not attempt to create any penalties. Rather, it had the effect of prescribing penalties in situations where offences had already been created by the Act.

Mr Madasa (ACDP) agreed with Mr Rathebe. Nevertheless, he wanted to know whether the Bill did indeed provide for any offences without penalties.

Mr Hoorn suggested that the department would revisit the Bill in an attempt to realise the necessity of the provision. In the absence of such a finding, the matter would then be dealt with accordingly.

Mr Rathebe felt that the provision had to be retained because the Minister had the power to make regulations in terms of Clause 17, some of which would have the effect of prescribing certain conduct without dealing with the penalty to be attached. He added that the provision was really a safety measure, and would not have the effect of penalising anyone.

Mr Smit (NNP) said that it was a very sloppy way of affording protection. He chose to go with the line suggested by Mr Hoorn, because he felt that the comments made by Mr Rathebe would amount to delegated legislation.

Mr Botha (DP) suggested that an assumption implicit in the Bill was that all the offences covered in the Bill would not merit a penalty greater than one year. However, he did not think such an approach would be correct.

Mr Ndlovu (IFP) asked for a compromise position, and proposed that they revisit the provisions.

Ms Modise encouraged the team from the department to revisit the Bill in order to discover instances where offences had been prescribed without any penalties.

Mr Madasa (ACDP) explained that the provision sought to cater for futuristic instances, and that as a result thereof, such instances could not be discovered at this stage.

Ms Modise stated that she meant that it would be necessary to go through the body of the Bill.

Mr Smit (NNP) cautioned the committee to ascribe towards legal certainty. He noted that Mr Rathebe was standing on the other side of where he stood because he felt that it would be necessary to attach penalties to offences, in the aim of legal surety.

Mr Ndlovu (IFP) believed that Mr Rathebe was proposing something unacceptable. He felt that the compromise position would be the best one to endorse. As a result, he cautioned Mr Rathebe not to attempt to push his luck in the matter. Regardless of the fact that the committee understood his need to include the provision, he stated that it would not be possible.

Mr Diale (ANC) repeated that fact that Mr Rathebe's view would confine penalties to not more than 1 year.

Ms Modise told the members that she would be closing the point.

Clause 100 Offensive Behaviour
Mr Diale (ANC) asked for clarification on the phrase "grounds of birth" in Clause 101 (1).

Mr Rathebe began by saying that for them the Constitution had become almost a bible. As a result, some of the proposed provisions were taken directly from the Constitution. He referred the committee to Section 9 (3) of the Constitution in this regard.

Ms Modise stated that the question was still not answered because it would be necessary to define "birth".

Mr Rathebe repeated the fact that the phrase had been lifted directly from the Constitution.

Mr Madasa (ACDP) suggested that the term refer to one's origin.

Ms Modise stated that origin had already been covered. She wondered whether the phrase referred to the geographical region. Nevertheless, she proposed that the phrase referred to illegitimacy, and that such a meaning would make more sense.

The Committee agreed to Clause 100.

Chapter 18 General
Clause 101 Repeal of Laws, and Savings
The Committee agreed to all the subclauses.

Clause 102 Short title and commencement
The Committee agreed to the provision.

Ms Modise explained that it was now the time to take the point raised by one of the members and move to Chapter 6.

Chapter 6 Defence Intelligence plus Clause 99 (16)
Ms Modise said that they were attempting to discover how Cabinet had dealt with the issues referred to therein, specifically the "covert" issue.

Mr Rathebe said that the issue really turned on whether the defence intelligence could conduct counter intelligence. He explained that Cabinet had referred the matter to NICCOC for advice, who had given the opinion that provision could be made. Consequently, provision was made for such instances.

Mr Smit (NNP) was not sure whether the dispute had been justifiably settled. He added that it would be necessary to get the information in writing.

Mr Rathebe responded that he would be able to provide the minutes of recommendation. Nevertheless, as he had already stated, the striking point was that counter intelligence would only be able to be conducted in the national defence force. He added that the provision sought to broaden this viewpoint.

Ms Modise added that at the time that this issue had been met with, the debate in Cabinet was ongoing. However, they were nevertheless concerned with the relationship between covert and overt intelligence. She noted that she would find out the exact position, in preparation for the next committee meeting.

Mr Rathebe pointed out that it was unlikely that she would anywhere find reference to either covert or overt.

Mr Smit (NNP) stated that clarification would be necessary.

Mr Oosthuizen (ANC) suggested that the committee await the report back by the Chair, following the consultations she had proposed to make. He proposed that the committee hold the arguments back for the moment.

Ms Modise noted that they could not conclude the issue relating to Clause 99 (16), as that would also have to be held off. She referred the issue on police powers to Mr Rathebe, and reminded the committee that they had a point of view on police powers. She said that public hearings had been held, but when the deliberations had commenced, they had found that the drafting ignored the opinions given by the public and by the portfolio committee. This made it necessary to revisit the issue. She noted that she was not against giving some degree of police power to the defence force in certain circumstances, and that they were sympathetic to this cause.

Ms Modise thanked the department for the contribution they had made. The meeting was adjourned.


1. On page 6, from line 22, to omit the definition of "directives".

2. On page 6, in line 29, to omit "too the Department".

2. On page 6, from line 35, to omit the definition of "instructions".

1. On page 8, in line 5, after "Constitution," to insert "and the Public Finance Management Act, 1999 (Act No.1 of 1999)".

1. That the following be a new clause:

Secretary for Defence and Chief of Defence Force exercise powers under direction of Minister

4. Subject to section 202(2) of the Constitution, the powers vested in the Secretary for Defence and Chief of the Defence Force by or under this Act must be exercised subject to and in accordance with any directions of the Minister.

1. On pages, from line 17, to omit subsection (2).

1. On page 9, after line 7, to insert the following paragraph:

(e) must provide the Chief of the Defence Force with comprehensive instructions requiring the Chief of the Defence Force to issue orders and directives and to give commands to any specified member regarding the exercise of any power delegated or the performance of any duty assigned to that member by the Secretary for Defence as head and accounting officer of the Department of Defence;

1. On page Sin line 12, after "powers" to insert "and assignment of duties".

2. On page 9, in line 14, after "power" to insert "and assign any duty".

1. On page 23, after line 57, to insert the following subsection:

(2) If no agreement contemplated in subsection (1) can be reached in the Military Bargaining Council, the Minister may, after consideration of any advisory report by the Military Arbitration Board and with the approval of the Minister if Finance, determine the pay, salaries and entitlements contemplated in that subsection.

1. On page 24, after line 40, to insert the following subsection:

(6) For the purposes of this section "member" includes an employee deployed with the Defence Force.

1. On page 26, after line 1, to insert the following subsection:

(20) For the purposes of this section "member" includes an employee deployed with the Defence Force.

1. On page 27, in line 22, after "acted" to insert "negligently,".

2. On page 27, in line 27, to omit "member" and to substitute "Department".

3. On page 27, in line 27, to omit "Department" and to substitute "State".

4. On page 27, after line 31, to insert the following subsection:

(4) For the purposes of this section "member" includes an employee deployed with the Defence Force.

1. On page 33, from line 1, to omit all the words after "(a)" up to and including the second "as" in line 3.

2. On page 33, in line 4, to omit "related".

3. On page 33, from line 11, to omit paragraph (f).

4. On page 34, in line 30, to omit "Defence Force" and to substitute "Department of Defence".

5. On page 34, from line 31, to omit subsection (2) and to substitute:

(2) Any regulation made under subsection (1)-

(a) which may result in financial expenditure for the State may only be made subject to sections 63 and 64 of the Public Finance Management Act, 1999 (Act No.1 of 1999), and with the approval of the Minister of Finance; and

(h) relating to the terms and conditions of service of members of the Defence Force other than pay, salaries and entitlements contemplated in section 53, may be made with retrospective effect for a period not exceeding 12 months, except where such regulations provide for-

(i) any reduction in the privileges of members; or

(ii) the imposition of penalties.

1. On page 43, after line 42, to insert the following paragraph:

(19) Any person who fails to deal with public funds in an honest and accountable manner, fails to use the property and other resources of the State efficiently or uses such funds, property or other resources for unauthorised or unofficial purposes, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.


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